In many cases
service of a noticeis by hand,
immediately on site. Where the noticeis served on an employee then a letter with a copy of the noticeshould be sent to the registered office to ensure they are aware the noticehas been served.
Section 46 HSWA details ways by which a noticemay be served. There may be other ways outside the scope of Section 46.
Section 46(2) allows for service
by delivery or leaving at the recipient's proper address;
Section 46(3) for service on the
company secretary or clerk of the body corporate or service
on a partnership, by handing to a partner or person controlling
or managing the partnership;
Section 46(4) provides that the
address for service on the type of person in b) shall
be the registered or principal office of the company or
the principal office of the partnership;
Section 46(4) allows that the proper
address of any person shall be his/her last known address.
This does not apply to companies or partnerships (section
7 Interpretation Act 1978)
Section 46(6) allows service on
the owner or occupier of premises.
If the recipient of a
notice accepts that they have received it, this cures
any defect in service.
Section 7 of the Interpretation
Act 1978 states that any document served by post (properly
addressed, prepaid and posted) will be deemed to have
been served at the time at which the letter would be delivered
in the usual way by post, unless proved otherwise.
In order to confirm that
a notice has been properly served details of the delivery
and signature can be obtained through the postal system
used.
You should serve the
first copy of any notice (typed or written); the second
must be preserved in the office records. Where appropriate
a copy of the notice should be placed on the public register,
(in FOD this is done through the FOCUS record).
The leaflet ITL 19 ("Appeal
to the employment Tribunal against an Enforcement, Improvement
or Prohibition Notice in Health and safety and related
matters") should be given out or sent with the notice.
This includes the form for submitting an appeal. The reference
to the appeal process needs to be carefully explained
/ worded as some duty holders think they need to appeal
to have a notice‘lifted’.
Where there is a history
of non-compliance, or extensive resources are required
to comply with a notice, you should ensure that a copy
is brought to the attention of an appropriate senior manager
or director. In the event of non-compliance this may assist
in a prosecution of that person under section 37 of the
HSWA.
A copy of the notice
should be provided to employees or their representatives
in accordance with section 28(8)(b) of HSWA.
Service of improvement
notices where the corporate body operates on a number
of sites has given rise to difficulties in the past. You
should therefore ensure that the notice comes to the attention
of senior members of the organisation and also to ensure
that it is served; in the case of a corporation, at the
registered office which may be a firm of solicitors or
accountants.
Section 46(6) provides
that, where service is authorised on the owner or occupier
of premises, it may be sent by post to those premises
or addressed by name to the person on whom it is to be
served and delivered to some responsible person who appears
to be resident or employed in the premises. This has been
interpreted as limiting service to those premises where
the notice alleges a contravention by a person subject
to a duty specifically imposed on an occupier. It is not
enough that the person is in fact the occupier of those
premises and has contravened a relevant statutory provision.1
There are general statutory restrictions in place to
prevent the reporting and publication of alleged offences
or criminal proceedings which could reveal the identity
of a person under 18 years of age2.
The restrictions apply to press releases and publicly
accessible databases (eg the HSE notices database).
Where a notice is served on a person under the age of
18, the inspector must advise FOD OSU2 (Legal and Enforcement)
in writing, so that the name of the young person is omitted
from the entry on the notices database.
Footnotes
Mallon v Norman
Hill Plant Hire Ltd Divisional Court 6 March 1981 and HSE v George
Tankcocks Garage Ltd Divisional Court 22 January [1993] Crim.
L R 605
Youth Justice and Criminal Evidence Act 1999,
s.44,45,52
